Fair Trading Legislation Amendment (Reform) Act 2018

This Act is the Fair Trading Legislation Amendment (Reform) Act 2018.

This Act commences on the date of assent to this Act, except as provided by this section.

Schedules 1–5, 8 and 11 (other than Schedules 2.13, 4.1 and 4.2[2]) commence on 1 July 2020 or on an earlier day or days to be appointed by proclamation.

Schedules 2.13, 4.1 and 4.2[2] commence on a day or days to be appointed by proclamation.

The matter appearing under the heading “Explanatory note” in any of the Schedules does not form part of this Act.

The Secretary may from time to time publish any of the following information about a licence holder or trader on the internet for access by a member of the public free of charge—

identifying particulars, including the name of the licence holder or trader, the licence number, class or type, the date of issue and expiry date of the licence and details of any licence conditions,

information about the surrender, cancellation or suspension of a licence,

information about any disciplinary action taken against a licence holder or trader under this Act or any other legislation administered by the Minister,

information about any public warnings issued under this Act or any other legislation administered by the Minister,

information about any undertakings given under section 86B of this Act,

such other information as may be prescribed by the regulations.

The Secretary must not publish information under this section unless satisfied that it is in the public interest to do so.

The Secretary may at any time remove information from, or otherwise amend, information published under this section on the Secretary’s own initiative or on the application of the person to whom the information relates if the Secretary is of the opinion that the information is false, misleading or unfairly prejudicial to the interests of the person concerned.

The Secretary may correct any error in or omission from the information published under this section.

Information published under this section may include information held by the Secretary before the commencement of this section.

The regulations may specify—

the period within which information that is authorised to be published on the internet under this section must be removed from the information published on the internet, and

the information that is not to be published on the internet under this section.

No liability (including liability in defamation) is incurred for publishing in good faith information under this section or a fair report or summary of that information.

In the event of any inconsistency between this section and any other provisions of this Act or other legislation administered by the Minister, this section prevails to the extent of the inconsistency.

In this section—

licence includes any licence, registration or other authority issued under this Act or any other legislation administered by the Minister.

licence holder includes a former licence holder.

trader means a person carrying on a business regulated under this Act or other legislation administered by the Minister but who does not hold a licence, and includes any such business that has ceased trading.

A supplier must, before supplying a consumer with goods or services, take reasonable steps to ensure the consumer is aware of the substance and effect of any term or condition relating to the supply of the goods or services that may substantially prejudice the interests of the consumer.

Without limiting subsection (1), a term or condition relating to the supply of goods or services to a consumer may substantially prejudice the interests of the consumer if—

the term excludes the liability of the supplier, or

the term provides that the consumer is liable for damage to goods that are delivered, or

the term permits the supplier to provide data about the consumer, or data provided by the consumer, to a third party in a form that may enable the third party to identify the consumer, or

the term requires the consumer to pay an exit fee, a balloon payment or other similar payment.

The regulations may provide for—

what may or may not constitute reasonable steps taken by suppliers to ensure consumers are aware of the substance and effect of terms or conditions relating to the supply of goods or services, and

the type of terms, or classes of terms, that may substantially prejudice the interests of consumers, and

the type of terms, or classes of terms, that do not substantially prejudice the interests of consumers, and

any other requirements in relation to the way in which consumers must be made aware of terms and conditions relating to the supply or goods that may substantially prejudice the interests of consumers, and

exemptions from the requirements of this section.

An intermediary must, before acting under an arrangement that provides for the intermediary to receive a financial incentive, take reasonable steps to ensure the consumer who will be supplied with the goods or services to which the financial incentive relates is aware of the existence of the arrangement.

The regulations may provide for—

what may or may not constitute reasonable steps taken by intermediaries to ensure consumers are aware of the existence of arrangements that provide for intermediaries to receive financial incentives, and

any other requirements in relation to the way in which intermediaries must make consumers aware of the existence of arrangements under which intermediaries receive financial incentives.

In this section—

financial incentive means—

a commission or referral fee, or

another kind of payment prescribed by the regulations.

intermediary—

means a person—

who, under an arrangement that provides for a financial incentive, arranges contracts for the supply of goods or services as an agent or refers consumers to another supplier of goods or services, or

who is prescribed by, or who belongs to a class of persons prescribed by, the regulations, but

does not include a person, or class of persons, excluded by the regulations.

The regulations may prescribe information standards for the supply of goods and services.

A prescribed information standard may contain any of the following—

requirements for certain information to be communicated to a person to whom the goods or services are to be supplied,

requirements with respect to the type and form of information to be so communicated and the manner of communication.

This section does not limit section 134 (Making information standards for goods and services) of the ACL.

In this section, supply includes proposed and prospective supply and offer to supply.

A person who supplies goods or services that are intended to be used, or are of a kind likely to be used, by a consumer and in relation to which there is an information standard must comply with the standard in relation to the goods or services concerned.

Maximum penalty—50 penalty units.

If—

a person supplies goods or services in contravention of subsection (1), and

another person suffers loss or damage by not having particular information relating to the goods or services but would not have suffered the loss or damage if the information standard had been complied with in relation to the goods or services,

the person who suffers the loss or damage is taken, for the purposes of this Act, to have suffered it by the supply of the goods or services.

An application for full registration or a renewal of registration is to nominate one of the following terms of duration for the registration (the nominated term)—

1 year,

3 years,

5 years.

The Board may grant or renew registration for the nominated term or, if satisfied that it is in the public interest to do so, a shorter term than the nominated term.

If an application for renewal of registration has been made but the application is not finally determined by the Board before the expiry of the registration, the registration (if not suspended or sooner cancelled) continues in force until the application is finally determined.

If registration is granted or renewed for a shorter term than the nominated term, the Board is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted.

The suspension of registration does not affect the term of the registration.

This section does not affect the term of any registration granted under this Act and in force immediately before the insertion of this section by the Fair Trading Legislation Amendment (Reform) Act 2018.

An application for a certificate of accreditation or renewal of a certificate of accreditation is to nominate one of the following terms of duration for the certificate of accreditation (the nominated term)—

1 year,

3 years,

5 years.

The Board may grant or renew a certificate of accreditation for the nominated term or, if satisfied that it is in the public interest to do so, a shorter term than the nominated term.

If an application for renewal of a certificate of accreditation has been made but the application is not finally determined by the Board before the expiry of the certificate of accreditation, the certificate of accreditation (if not suspended or sooner cancelled) continues in force until the application is finally determined.

If a certificate of accreditation is granted or renewed for a shorter term than the nominated term, the Board is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted.

The suspension of a certificate of accreditation does not affect the term of the certificate of accreditation.

This section does not affect the term of any accreditation granted under this Act and in force immediately before the substitution of this section by the Fair Trading Legislation Amendment (Reform) Act 2018.

An application for the restoration of a certificate of accreditation must be made—

within 3 months of the expiry of the certificate of accreditation, or

within the further period determined by the Board on the application of the person seeking the restoration of the certificate of accreditation.

Without limiting subsection (1) (b), the Board may extend the period within which an application for the restoration of a certificate of accreditation may be made if the Board is satisfied that—

in a case where the applicant failed to apply for renewal before the certificate of accreditation expired—the failure to apply for renewal of the certificate of accreditation before it expired was due to inadvertence, or

it is just and equitable to restore the certificate of accreditation.

A certificate of accreditation that has been surrendered or cancelled must not be restored.

An application for the restoration of a certificate of accreditation must—

be made in the approved form (if any), and

be accompanied by the fee prescribed by the regulations, and

nominate a term of duration for the certificate of accreditation.

A certificate of accreditation restored at any time is taken to have been restored on and from the day on which the certificate of accreditation expired.

Subject to this section, this Act applies to an application for the restoration of a certificate of accreditation in the same way as it applies to an application for a certificate of accreditation.

The Board may refuse an application for the restoration of a certificate of accreditation in the circumstances prescribed by the regulations.

An application for a licence or for renewal of a licence is to nominate one of the following terms of duration for the licence (the nominated term)—

1 year,

3 years,

5 years.

The Secretary may grant or renew a licence for a shorter term than the nominated term if satisfied that it is in the public interest to do so.

If an application for renewal of a licence has been made but the application is not finally determined by the Secretary before the expiry of the licence, the licence (if not suspended or sooner cancelled) continues in force until the application is finally determined.

If a licence is granted or renewed for a shorter term than the nominated term, the Secretary is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted.

The suspension of a licence does not affect the term of the licence.

This section does not affect the term of any licence granted under this Act and in force immediately before the substitution of this section by the Fair Trading Legislation Amendment (Reform) Act 2018.